C G Maloney Pty Ltd v Hutton-Potts and Another [2006] NSWCA 136

C G Maloney Pty Ltd v Hutton-Potts and Another [2006] NSWCA 136

Both hotel-occupier and cleaner owed and breached a duty of care to the plaintiff and were properly found liable. The risk was not 'obvious' within the Act because the slippery polish was not apparent; even if it was, the presumption of knowledge was rebutted. Liability was correctly apportioned 80% to the hotel and 20% to the cleaner based on control and responsibility. Damages, save the hydrotherapy award, were a reasonable exercise of discretion. Costs orders based on failure to accept a reasonable offer to contribute were within the trial judge’s discretion.

Parties
Appellant: C G Maloney Pty Ltd trading as Bondi Hotel; First Respondent: Diana Hutton-Potts; Second Respondent: Kidgloves Australia Pty Ltd trading as P-Jays Cleaning Service (ACN 072 387 305)
Jurisdiction
Australia
Judgment Date
29 May 2006
Procedural Posture
Civil Appeal / Court of Appeal Judgment
Outcome
Appeal allowed in part (only as to reduction of damages for hydrotherapy); otherwise dismissed
Legal Topics
Occupier’s Liability, Negligence, Obvious Risk, Contributory Negligence, Damages Assessment, Apportionment of Liability, Costs Orders
Tort Civil Liability Damages Practice and Procedure Occupier’s Liability Negligence Obvious Risk Contributory Negligence +3 more

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Parties

C G Maloney Pty Ltd trading as Bondi Hotel

Appellant

Diana Hutton-Potts

First Respondent

Kidgloves Australia Pty Ltd trading as P-Jays Cleaning Service (ACN 072 387 305)

Second Respondent

Procedural Posture

Civil Appeal / Court of Appeal Judgment

Legal Issues

  1. 1 Whether the hotel and cleaning company were liable for injuries caused by a slip on a recently polished floor
  2. 2 Whether there was an 'obvious risk' under the Civil Liability Act 2002 (NSW) and the consequences for the plaintiff
  3. 3 Appropriate apportionment of liability between hotel and cleaner

Ratio Decidendi

Both hotel-occupier and cleaner owed and breached a duty of care to the plaintiff and were properly found liable. The risk was not 'obvious' within the Act because the slippery polish was not apparent; even if it was, the presumption of knowledge was rebutted. Liability was correctly apportioned 80% to the hotel and 20% to the cleaner based on control and responsibility. Damages, save the hydrotherapy award, were a reasonable exercise of discretion. Costs orders based on failure to accept a reasonable offer to contribute were within the trial judge’s discretion.

Court Disposition

Appeal allowed in part (only as to reduction of damages for hydrotherapy); otherwise dismissed

Orders

  • Judgment for the plaintiff for $197,169.61 against first and second defendants, apportioned 80%/20%
  • Judgment for the second respondent against the appellant on the cross-claim for $157,735.68